Mr. Guadalupe G. Villarreal, Deputy City Attorney, City of
Racine, appearing on behalf of the
City.

ARBITRATION AWARD

The Union and the City named above are parties to a 1995-1997 collective bargaining
agreement that provides for final and binding arbitration of certain disputes. The parties
asked the
Wisconsin Employment Relations Commission to assign an arbitrator to hear and resolve the
grievance of Markus Dyess regarding a two day, five and one-half hour suspension for
insubordination. The undersigned was appointed and held a hearing in Racine, Wisconsin on
April
1, 1998, at which time the parties were given the opportunity to present their evidence and
arguments. The parties completed filing briefs by August 17, 1998.

ISSUE

The parties ask:

Did the Employer violate the collective bargaining agreement when it imposed a two
day, five
and one-half hour suspension on the Grievant on January 27, 1997? If so, what is the
appropriate
remedy?

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BACKGROUND

The Grievant is Markus Dyess, an employee of the City who works in the solid waste
division
of the Department of Public Works collecting garbage.

On January 24, 1997, public health nurses gave a presentation regarding hepatitis B
to
City
employees in the Department of Public Works. The nurses met with employees in the
lunchroom of
the DPW, showed a video regarding the disease, and talked about the vaccine that they
would give
to employees. They asked employees if they had the vaccine before, whether they have had
a
hepatitis panel, or know that they have hepatitis B, in which case those people would not
need the
vaccine. At the end of the program, the nurses were going to give the vaccine to employees
unless
they signed a statement to decline it.

Dyess asked several questions because he works with garbage and had been stuck by
a needle
in the past. He told the nurses that he had previously had the vaccine. Debora Williams
from the
Nursing Department recalled that Dyess asked, "Is this being given to everyone, and is it for
free?"
When the nurses responded yes, Dyess said he wanted the vaccine. However, the nurses
told him that
he could not get it because he had already had it. They repeatedly told him that he could not
get the
shot, and he kept on repeating that if it was available to everyone and if it was free, he
wanted the
shot. Dyess felt that he was not getting answers to his questions. The nurses told him to get
his
records from his doctor, and come to City Hall to the lab to get a hepatitis profile to find out
if he was
immune. Dyess did not recall being told by the nurses that he could be checked at a later
date.

Other employees were starting to get restless as Dyess continued to assert that he
wanted the
vaccine. They said they wanted the questions to stop so they could get on with the shots and
go back
to work or get to lunch. They objected to hearing the same questions and answers involving
Dyess
over and over.

The Superintendent of Public Works, Joseph Golden, felt that Dyess' continued
questions
and demands to have the shot were becoming disruptive, particularly as other employees
started to
tell him to be quiet, and he sensed that the nurses were getting a little unnerved. Golden
asked Dyess
to come into his office. They went into a conference room right next to the lunchroom,
while the
nurses started to give the shots to employees.

Golden tried to tell Dyess in the conference room that no one was trying to "rip him
off" and
that he could go over to City Hall at the end of the session to get the blood work that the
nurses had
offered him. Dyess continued to demand that he should get the shots, that the blood panel
was not
an option. Golden was gesturing with his hands as he talked, and Dyess told him, "Don't
you ever
point your finger in my face again." Golden testified that he never pointed his finger in
Dyess' face.
Golden told Dyess to go back across the street to the DPW garage and that Golden would
have him
reassigned by a supervisor. Dyess left the conference room.

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MA-9945

Dyess testified that when he went into the conference room with Golden, Golden
closed the
door and said, "What the fuck are you trying to do, embarrass that nurse out there?"
Dyess stated
that when Golden put his finger in his face, he calmly said, "Do you want to get your finger
out of
my face?" Dyess stated that Golden then told him to "get the hell out" of his office and
report
across the street to his immediate supervisors. Golden testified that he did not swear at
Dyess.

When Dyess went out into the lunch room, he spotted Leonard Hand, another
employee.
Dyess thought that Hand was a Union representative and he wanted a witness for what he
was about
to do next -- to tell Golden again, in front of others, not to put his finger in his face and to
not swear
at him.

Golden assumed that Dyess had left the building and Golden intended to help with the
hepatitis program in the lunchroom. As Golden entered the lunchroom, Dyess came right up
to him
and said, " Don't ever get your hands in my face again, do you hear me?" Dyess stated
that he also
told Golden not to swear at him. Dyess walked out of the building. Golden felt that Dyess
had now
challenged his authority in front of other employees and he needed to do something about it.
Golden
started to follow Dyess and called him and asked him to return to the office. Golden called
three or
four times to him and said, "Markus, I want to talk to you, come on back." Dyess
continued to walk
away.

Dyess knew that someone was following him because he heard someone "stomping"
or
making loud foot noises behind him. Dyess said he looked over his shoulder and assumed it
was
Golden, but that nothing was said to him, so he left and went across the street. He was
outside when
he heard someone (he assumed it was Golden) yell, "Markus, get back here." Dyess kept
walking,
because he said, he did not know who was yelling at him. Dyess stated that he then heard
Golden
yell, "Markus, if you want your job, you better get your ass back here." Dyess went to
report to his
immediate supervisor and did not return as ordered by Golden.

Dyess testified that he went to find a supervisor because things were out of control,
that he
felt Golden was talking to him in a condescending manner, and that perhaps a supervisor
could calm
things down. Dyess testified that he returned to Golden's office area a couple of minutes
later but
the door was locked. Jeffrey Fidler, the general maintenance supervisor, came to the door
and told
Dyess to go around to the front office and meet with Golden. Dyess told Fidler he wanted a
Union
representative, and Fidler said they had already called Rick Koke, who was a Union steward
at the
time. When Dyess and Koke met with Golden, Golden told Dyess that he was indefinitely
suspended
until further notice and to punch out. There were five and a half hours left in the day when
Dyess was
suspended for that day. It was eventually determined that Dyess would be suspended for
another two
days, for a total of two days, five and a half hours.

When Dyess and Koke met with Golden, Golden said he told Dyess that he would not
accept
that type of behavior -- refusing to acknowledge Golden calling him back and the incident in
the
lunchroom when Dyess told Golden not to point his finger in his face. When Dyess made
that remark
in the conference room, Golden accepted it and thought it was the end of the matter, but
when Dyess
repeated it loudly in front of others, Golden saw no need for him to do that.

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MA-9945

Golden and Dyess met with the City's Affirmative Action Officer, William Dyess,
who is also
the father of Markus Dyess, the Grievant here. Golden explained to the Grievant that he has
a
tendency to talk with his hands, and if the Grievant construed those gestures as pointing his
finger
in his face, he did not mean to offend him. The Grievant felt that Golden apologized to him
in this
meeting, and he apologized to Golden. The Grievant feels as if he is being singled out or
picked on
because of his relationship to William Dyess.

James Kozina, the City's Personnel Director, and Golden considered Dyess' history
with the
City in determining the amount of discipline. Dyess started as a seasonal employee. The
City usually
considers its seasonal employees for full-time employment, and there is a six-month period
where
seasonal employees are evaluated before a decision is made to make them full-time
permanent
employees.

Golden had some concerns about Dyess becoming a permanent employee because he
had
shown some trouble with authority. However, Golden felt that Dyess had made some
improvement
in that area and that it was a minor thing at that time, but worth noting in the evaluation.
His
progress report shows that he was being recommended as a permanent hire, and the remarks,
prepared by Golden, stated:

AEmployee has had some problem with tardiness in the past. This has improved.
"lthough I am recommending this employee for regular full-time employment I am
somewhat
concerned with his ability to take instruction and follow directions. I do not however,
believe
this is a serious problem that would prevent his full-time employment."

Golden relied on supervisors comments when making that evaluation. When Golden
gave
Dyess this evaluation, Dyess told Golden: "Who do you think you are to evaluate me? You
don't
even know me, and you don't have any qualifications to evaluate me." Dyess signed the
progress
report with a protest, and noted:

"I Markus protest ("concerned with his ability to take instruction and follow
directions") I never didn't listen to my directions given by my supervisor while working
for
the City."

Dyess felt that Golden had no contact with him and no reason to write down anything
about
his ability to follow directions and instructions. Golden promptly ended that meeting and
told Kozina
that they should extend his probationary period another 30 days to see if there was any
change in his
attitude. Dyess' probationary period was extended.

On May 10, 1996, Dyess was given an oral reprimand for insubordination during the
meeting
on April 30, 1996, when Golden wanted to discuss Dyess' six month progress report.
During the
May 10th meeting, Golden felt that Dyess' attitude was much better and the 30 day
extension was
not necessary.

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MA-9945

Dyess received a one day suspension on January 16, 1996, for an accident while
operating a
snow plow, but it was later reduced to a written reprimand on June 16, 1996, and then
further
reduced to an oral reprimand on January 17, 1997.

Dyess also received a written reprimand on January 21, 1997, for calling in sick
without
sufficient notice. He had earlier been given an oral reprimand for the same thing.

Dyess eventually had a blood panel done that showed that he was immune to hepatitis
B and
that he did not need the vaccine.

THE PARTIES' POSITIONS

The City

The City asserts that the Grievant's behavior at the nurses' presentation was
disruptive to
the nurses and other DPW employees present in the lunchroom, and that behavior caused
Golden to
ask the Grievant to go into his office/conference room. Golden wanted to give the Grievant
his
options one more time and bring the presentation and vaccinations to an orderly end. Golden
also
wanted to get the Grievant back to his work area to be reassigned for the rest of the day.

It is uncontradicted that the Grievant did not go back to his supervisor to be
reassigned as
requested by Golden. There was no purpose in the Grievant's action in yelling and getting
in
Golden's face after the short discussion in Golden's office.

The City submits that the Grievant's actions were insubordinate in two ways. First,
he failed
and/or refused to carry out Golden's two requests -- to return to his work area to be
reassigned, and
to stop and come back. Secondly, his act of getting in a supervisor's face is an
insubordinate act in
itself. It is the essence of his unwillingness to accept authority by the outright display to
other
employees of his unwillingness to be bound by authority. His disruptive behavior with the
nurses was
similar and shows that he thinks he does not have to follow the rules and can be as ornery
and
obstinate as he wants to be without any consequences. Other employees saw that his
repetitive
questions were only delaying the hepatitis presentation.

The Grievant's explanation that he was merely responding to Golden's actions in
the
office/conference room is not credible. If Golden wanted to humiliate him, he would have
done it in
front of everyone, as the Grievant did. The Union's own witness, Hand, described the
Grievant's
actions as a confrontation between Golden and the Grievant and noted that Golden did not
say
anything.

The City concludes that the suspension was consistent with the Employer's
progressive
discipline and the Grievant's disciplinary history. The Grievant's behavior was disruptive
to the
nurses' presentation, and his inappropriate behavior was followed by the insubordinate
actions of
getting in the superintendent's face, yelling at him in front of other employees, and refusing
Golden's request to come back.

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MA-9945

The Union

The Union submits that Dyess' concerns about the severity of hepatitis B were
justified and
his questions were not answered. The stories split when Golden and Dyess went to the office
and
had a private conversation. Dyess testified that Golden demanded, "What the fuck are you
trying
to do?" Dyess also testified that Golden was flailing his hands and cursing at him and
eventually told
him ". . . to get the hell out of my office and report to your supervisor across the street."
Golden
denies it all.

Dyess was embarrassed and upset by the incident. When Golden followed him out,
he
approached Golden and told him not to point his finger in his face and not to swear at him.
At that
time, Golden decided to discipline him, even before Dyess left the building. Dyess followed
Golden's
order and went to seek his supervisor for a work assignment. Dyess returned when he
couldn't find
a supervisor and pounded on the door about two minutes later.

The Union asserts that the City did not have just cause to suspend Dyess for
insubordination,
and even if discipline is in order, the punishment does not fit the crime. City Exhibit #6 is a
mediated
settlement regarding a past vehicular accident. There is no similarity between the January
27th
incident and a vehicular accident.

Golden testified that oral reprimands are the first step of discipline under the City's
progressive discipline policy, and written reprimands are second. Progressive discipline was
absent
when Dyess received a suspension of more than two days.

The Union objects to the City's Exhibit of an evaluation form signed by Dyess under
protest,
since his objection to the evaluation was not noted by the City and not revealed until the
Union
introduced an exhibit that reflects the entire document. Further, the exhibit is worth nothing
because
it was the evaluation of a seasonal employee hoping for a full-time position who understood
that it
was in his best interest to say his peace and move on.

The Union argues that a two and a half day suspension for questionably divergent
recollections and without convincing proof is stiff. The suspension where a work record is
void of
similar warnings is even stiffer. While two wrongs don't make a right, two wrongs don't
make a
right and a two and a half day suspension. At most, Dyess should receive a reprimand and
be made
whole for the time lost.

DISCUSSION

The record contains sufficient proof that Dyess was insubordinate to Golden. The
fact that
Dyess and Golden do not agree on what happened in the office is irrelevant to the disposition
of this
case, because the discipline imposed was not for Dyess' conduct in Golden's office. In
fact, Golden
was willing to allow Dyess' insubordinate acts in his sole presence to pass without further
ado.
However, it was Dyess who escalated the matter by approaching Golden later in the
lunchroom in
front of several employees, got close to Golden and told him to never put his hands in

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his face again and to not swear at him. Also, Dyess refused Golden's direction to
return to the office
after Golden asked him to come back several times. Few managers or supervisors would let
such
conduct go unchallenged.

The City has shown that it had just cause to discipline Dyess for his insubordination,
and the
only real question in this case is whether the discipline is reasonable or whether it is
excessive.
Certainly, a two and a half day suspension is a steep penalty. However, disciplinary
measures
imposed by management should not be reduced by an arbitrator unless the disciplinary
measure is
clearly excessive, unreasonable, arbitrary, capricious, or management has abused its
discretion.

I find that the discipline imposed was reasonable under all of the circumstances of
this
case.
First, the Grievant has been insubordinate less than one year before this incident, and he
almost did
not get a full-time position with the City because of his attitude with Golden while he was
being
evaluated for a permanent position. He told Golden, "Who do you think you are to evaluate
me?"
Dyess needs to realize just who Golden is, and hopefully, he has figured it out by now that
Joe
Golden is the Superintendent of Public Works -- the person with the authority to hire,
evaluate,
supervise and discipline. Golden holds a high level of authority in the Department, and if
Dyess
continues to challenge Golden's authority, how will he ever accept any orders from lower
level
supervisors?

The penalty is appropriate in light of what it takes to get the Grievant's attention. If
he is to
have a long and successful career in the Department, he cannot possibly treat Golden in this
manner
and expect to stay in this Department. Also, it is apparent that Dyess never
listens. He did not listen
to the nurses when they explained that he did not need the shot. He did not listen or even
hear the
nurses tell him that he could come to City Hall and have his blood tested to see if he was
immune to
hepatitis B. He did not listen to Golden in the conference room and reacted angrily to
Golden. He
did not listen to Golden when Golden asked him to return as he crossed the street.

So it takes more than the usual discipline to get his attention.

Accordingly, I find that the City had just cause to suspend the Grievant for his
conduct on
January 27, 1997, particularly his two insubordinate actions of challenging Golden's
authority in
front of other employees and refusing to obey Golden's orders to return to his office.